Folwell v. Hernandez

210 F.R.D. 169, 2002 U.S. Dist. LEXIS 18740, 2002 WL 31159489
CourtDistrict Court, M.D. North Carolina
DecidedSeptember 27, 2002
DocketNo. 1:01CV01061
StatusPublished
Cited by8 cases

This text of 210 F.R.D. 169 (Folwell v. Hernandez) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Folwell v. Hernandez, 210 F.R.D. 169, 2002 U.S. Dist. LEXIS 18740, 2002 WL 31159489 (M.D.N.C. 2002).

Opinion

ORDER

ELIASON, United States Magistrate Judge.

Defendant Sara Lee Corporation (“Sara Lee”) has filed a Fed.R.Civ.P. 26(c) motion for a protective order to prevent the deposition of Linda Woltz, who is the current CEO and President of Sara Lee Underwear, an unincorporated division of Sara Lee. In the alternative, defendant has asked that any discovery of Ms. Woltz be conducted through written interrogatories. Plaintiffs retort that [171]*171there are good reasons for the deposition and request the Court to reject defendant’s motion.

A brief history will be helpful for understanding the Court’s ruling. Plaintiffs bring this action to recover for the death of their deceased son who was killed on May 17,1999 by an automobile driven by defendant Aymara Hernandez. Hernandez is a Costa Ri-can citizen who is employed by defendant SLKP Compania de Servicios Administrati-vos, S.A. (“SLKP”). SLKP is a wholly owned Costa Rican corporation of Sara Lee. At the time of the accident, Hernandez was undergoing training at the Sara Lee Underwear facility in Winston-Salem, North Carolina.

The case was originally filed in state court. However, when the Sara Lee Sock Company (a North Carolina corporation) was dismissed as a defendant by the state court, Sara Lee removed the ease to federal court on the grounds that no remaining defendant was a citizen of North Carolina. See 28 U.S.C. §§ 1332, 1441, 1446(b).

Prior to the transfer, plaintiffs had taken fifteen depositions, propounded 195 interrogatories, 52 requests for admissions, and submitted 205 requests for production of documents. Eight of the deponents were executives of Sara Lee, including the former CEO of the Underwear division. He left his position in March 2000 and Ms. Woltz was appointed to replace him sometime in April or May 2000. Defendants Hernandez and Mendez are employees of SLKP. Mendez is Ms. Hernandez’s manager.

The inter-corporate relationships, both formal and informal, assume importance in this litigation for the following reasons. Ms. Hernandez killed the Folwell child when she illegally passed a stopped school bus. Being from Costa Rica, she claims that she was not familiar with the motor vehicle laws of the United States or North Carolina. She was in the United States to undergo training at the Sara Lee Underwear facility. Plaintiffs want to show that Sara Lee may be held responsible for the accident based on Sara Lee’s ownership of, control over, and/or relationship with SLKP, the furnishing of automobiles, etc. Plaintiffs claim Woltz’s deposition will provide the answers.

Sara Lee requests a protective order based on the theory that Ms. Woltz’s deposition would be duplicative, repetitive, and burdensome. It contends that plaintiffs have already obtained information concerning the interrelationships between the defendants by deposing eight of Sara Lee’s executives. It points out that Woltz has no knowledge about the accident and was not connected with the Underwear division at the time of the accident. In such a situation, it asserts that courts are, and should be, reluctant to permit the depositions of top (“Apex”) executive officers of corporations. Sara Lee presents affidavits detailing Woltz’s busy schedule. However, it is worth noting that as of July 2002, she now has management responsibilities over Sara Lee Sock and SLKP, which are separate corporations and not divisions of Sara Lee.

Plaintiffs counter, saying that because of the management turnover at Sara Lee, it has been difficult to find executives who truly know about the intricacies of the various corporate relationships. Furthermore, a management chart and diagram showing corporate responsibilities was only produced after the deposition of those executives and, therefore, a deposition concerning this chart needs to be conducted in any event. Plaintiffs contend that Woltz appears to be the appropriate candidate. Plaintiffs further argue that it is important for establishing Sara Lee’s liability to show that Hernandez’s supervisor Mendez (the President of SLKP) is actually controlled by Sara Lee management. This will be used to rebut Sara Lee’s position that because Hernandez was not an employee of the Sara Lee Corporation, it cannot be held responsible for her actions. Finally, plaintiffs have not been able to effectuate service on Mendez even though, according to plaintiffs, he comes to Winston-Salem on a monthly basis. Plaintiffs assert that Sara Lee may be conveniently cloaking his presence to avoid service. According to plaintiffs, all these matters justify Woltz’s deposition.

Because the matter was transferred from state court, most of the discovery has already [172]*172been conducted. In this Court, the Rule 26(f) discovery plan permitted plaintiffs to take three depositions. To date, no Fed. R.Civ.P. 30(b)(6) or equivalent deposition has been taken in state court or in this Court. Plaintiffs have two depositions remaining under the discovery plan. At oral argument, plaintiffs’ counsel readily admitted that had the case originally been brought in this Court, he understands that it would be highly unlikely that this Court would have permitted the amount of discovery conducted in state court and he would have radically altered his discovery plan. Counsel further admitted that knowing this Court’s position, he most likely would have conducted the Rule 30(b)(6) deposition of Sara Lee first in order to establish that the information plaintiffs seek must come from Woltz. However, counsel says it would be unfair to punish plaintiffs, when it was defendants who forced plaintiffs into federal court after the discovery had taken place. Finally, plaintiffs agree that in order to alleviate concerns regarding Woltz’s busy schedule, they will limit the deposition to one-half day and hold it at her convenience.

Discussion

Deciding Sara Lee’s request for a protective order prohibiting or limiting the deposition of one of its corporate officers highlights the tension between Rule 30(a)(1) and 30(b)(6). Rule 30(b)(6) came about with the 1970 amendments to the Federal Rules. Pri- or to that time, a corporation could only be examined through its officers or managing agents, and a party wishing to take the deposition was required to identify and specify the officer or agent who, hopefully, had the desired information. See 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2110 (ed.1994). This led to problems when the officer or agent did not have the information. The procedure forced parties into a guessing game to name the right officer and, by its nature, the procedure created a disincentive for the officer to remember information because doing so would frustrate an opponent’s case.

As a result, Rule 30(b)(6) was enacted which puts the burden on the corporation to produce persons to testify to the areas of examination specified in the deposition notice. Id.; and United States v. Taylor, 166 F.R.D. 356 (M.D.N.C.1996) (obligation to prepare continues even if corporation no longer employs persons with actual knowledge of events). With the enactment of Rule 30(b)(6), a party may be assured that it will obtain the corporation’s knowledge and position with respect to the case. Taylor, 166 F.R.D. 356.

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Cite This Page — Counsel Stack

Bluebook (online)
210 F.R.D. 169, 2002 U.S. Dist. LEXIS 18740, 2002 WL 31159489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folwell-v-hernandez-ncmd-2002.